[275] See pp. [546-548]. For the distinction between inherent and precautionary limitations to the exercise of judicial review and the operation of judicial review within them, see Edward S. Corwin, Judicial Review in Action, 74 Univ. of Pennsylvania L. Rev. 639 (1926). For the limitations generally see also the concurring opinion of Justice Brandeis in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-356 (1936), and the cases cited therein.
[276] One of the earliest formulations of this rule is that by Justice Iredell in Calder v. Bull, 3 Dall. 386, 399 (1798), and by Justice Chase in the same case, p. 394. On the other hand Justice Chase in this same case asserted that there were certain powers which "it cannot be presumed" have been entrusted to the legislature. See also Sinking-Fund Cases, 99 U.S. 700 (1879).
[277] Ogden v. Saunders, 12 Wheat. 213 (1827); Providence Bank v. Billings, 4 Pet. 514, 549 (1830) (argument of counsel); Legal Tender Cases, 12 Wall. 457 (1871); Madden v. Kentucky, 309 U.S. 83 (1940); Alabama State Federation of Labor v. McAdory, 325 U.S. 450 (1945). See also Justice Moody's dissenting opinion in Howard v. Illinois C.R. Co. (The Employers' Liability Cases), 207 U.S. 463, 509-511 (1908).
[278] Adkins v. Children's Hospital, 261 U.S. 525 (1923). "But freedom of contract is, nevertheless, the general rule and restraint the exception; and the exercise of legislative authority to abridge it can be justified only by the existence of exceptional circumstances." Ibid. 546.
[279] Kovacs v. Cooper, 336 U.S. 77, 88 (1949) opinion of Justice Reed. See Justice Frankfurter's concurring opinion for a criticism of this rule. For other cases imputing to freedom of religion and the press a preferred position so as to reverse the presumption of validity see Herndon v. Lowry, 301 U.S. 242, 258 (1937); United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4 (1938); Thornhill v. Alabama, 310 U.S. 88, 95 (1940); Schneider v. State, 308 U.S. 147, 161 (1939); Bridges v. California, 314 U.S. 252, 262-263 (1941); Murdock v. Pennsylvania, 319 U.S. 105, 115 (1943); Prince v. Massachusetts, 321 U.S. 158, 164 (1944); Follett v. McCormick, 321 U.S. 573, 575 (1944); Marsh v. Alabama, 326 U.S. 501 (1946); Board of Education v. Barnette, 319 U.S. 624, 639 (1943); Thomas v. Collins, 323 U.S. 516, 530 (1945); Saia v. New York, 334 U.S. 558, 562 (1948). Justice Frankfurter has criticized the concept of "the preferred position" of these rights as a phrase that has "uncritically crept into some recent opinions" of the Court, Kovacs v. Cooper, 336 U.S. 77, 90 (1949); and Justice Jackson in a dissent has also opposed the idea that some constitutional rights have a preferred position. Brinegar v. United States, 338 U.S. 160, 180 (1949). "We cannot," he said, "give some constitutional rights a preferred position without relegating others to a deferred position; * * *"
[280] Watson v. Buck, 313 U.S. 387 (1941); Justice Iredell's opinion in Calder v. Bull, 3 Dall. 386 (1798); Jacobson v. Massachusetts, 197 U.S. 11 (1905). See also Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949); Daniel v. Family Security Life Ins. Co., 336 U.S. 220 (1949); Railway Express Agency v. New York, 336 U.S. 106 (1949); Wickard v. Filburn, 317 U.S. 111 (1942); United States v. Petrillo, 332 U.S. 1 (1947); American Power & Light Co. v. Securities & Exchange Commission, 329 U.S. 90 (1946); Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940). See also Railroad Retirement Board v. Alton R. Co., 295 U.S. 330 (1935); Home Bldg. & Loan Assoc. v. Blaisdell, 290 U.S. 398 (1934); Arizona v. California, 283 U.S. 423 (1931); McCray v. United States, 195 U.S. 27 (1904); Hamilton v. Kentucky Distilleries & W. Co., 251 U.S. 146 (1919). Compare, however, Bailey v. Drexel Furniture Co. (Child Labor Tax Case), 259 U.S. 20 (1922), where the Court considered the motives of the legislation.
[281] 198 U.S. 45 (1905).
[282] 297 U.S. 1 (1936). The majority opinion evoked a protest from Justice Stone who said in dissenting: "The power of courts to declare ... [an act of Congress unconstitutional] is subject to two guiding principles of decision which ought never to be absent from judicial consciousness. One is that courts are concerned only with the power to enact statutes, not with their wisdom. The other is that while unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint. For the removal of unwise laws from the statute books appeal lies not to the courts but to the ballot and to the processes of democratic government." Ibid. 78-79.
[283] United States v. Congress of Industrial Organizations, 335 U.S. 106 (1948); Miller v. United States, 11 Wall. 268 (1871).
[284] See, for example, Michaelson v. United States, 266 U.S. 42 (1924), where the Court narrowly construed those sections of the Clayton Act regulating the power of courts to punish contempt in order to avoid constitutional difficulties. See also United States v. Delaware & H.R. Co., 213 U.S. 366 (1909), where the Hepburn Act was narrowly construed. Judicial disallowance in the guise of statutory interpretation was foreseen by Hamilton, see Federalist No. 81.